Experts fear police ‘overreach’ in arrest of teen in website breach

Internet law experts are questioning the arrest of a 19-year-old Halifax man for an alleged breach of a provincial website after the youth came forward to say he believed he was simply downloading public information.

Halifax police Supt. Jim Perrin speaks to reporters in Halifax on Saturday, Dec. 9, 2017. Internet law experts are questioning the arrest of a 19-year-old Halifax man last week for alleged breaches of a provincial website after the youth came forward to say he believed he was downloading public information. (THE CANADIAN PRESS)

On Monday, CBC quoted the young man saying he had no malicious intent when he retrieved 7,000 documents from the government’s freedom-of-information internet portal due to his interest in a recent teachers’ labour dispute.

The 19-year-old, whose name CBC did not publish, and his family members also said there were 15 police officers involved in a raid on their house on April 11. They described the search as a frightening experience that left their home in disarray.

Michael Geist, a University of Ottawa law professor who specializes in internet law, said in an interview Tuesday it appears the province designed a website that could be accessed by many citizens with basic computer skills.

Geist said the lack of basic password protections and warnings to the public suggest to him that the police overreacted by sending a squad of officers into the youth’s home and ordering him to appear in court, three days after receiving a complaint from the provincial government.

“Based on what we’ve seen from the young man’s side, it feels like a case of overreach,” Geist said during an interview Tuesday. “It doesn’t seem like there’s any of the intent you would typically expect in a criminal investigation.”

He said if the youth’s account is correct, the notion of arrests of teenagers who access public materials online which lack security measures or public warnings “is absurd.”

David Fraser, a Halifax privacy lawyer, said if the youth wrote a few lines of computer code to collect materials on a publicly accessible government website that’s unlikely to suggest criminal intent, as this is done commonly by people ranging from journalists to archivists.

“We don’t have all the facts … or why the documents were on the website to begin with,” he said.

“However, it seems that the Crown is going to have a very difficult time proving criminal intent under this provision of the criminal code.”

Police are alleging that the young man has broken section 342.1 of the criminal code, which prohibits unauthorized uses of computers “with intent to commit an offence.”

A spokeswoman for Halifax police said if anyone is concerned with the way police have handled the case, they can file a complaint under the Nova Scotia Police Act.

“With respect to the number of officers who were involved in the search, we won’t discuss operational deployment, however each search requires planning and we can confirm that this was done in this case,” said Const. Carol McIsaac in an emailed statement.

“Any time a person is unhappy with the actions of the Halifax Regional Police, the Nova Scotia Police Act outlines the options for making a complaint against an officer.”

McIsaac also wrote in an email that the case “remains under investigation.”

So far, investigators haven’t filed an information before the Halifax provincial court nor listed the young man’s name on the docket for a June 12 arraignment, though the 19-year-old has been served with notices requiring him to appear.

Meanwhile, Fred Vallance-Jones, an associate professor of journalism at the University of King’s College, said journalists and other users of public websites should be concerned by the police actions, if the young man’s description proves to be correct.

“I think there was an egregious failure on the part of the province to protect this information. They left it out there,” said Vallance-Jones, who teaches journalism students how to collect publicly accessible data.

“That’s where the first and most important failure lies.”

The Canadian Association of Journalists’ national president also expressed concerns about the police actions, saying journalists frequently access public websites with basic computer codes to download data with the intent to inform the public.

“Unless there’s something else going on, and information we don’t yet have, journalists are certainly concerned that police considered this criminal behaviour,” said Nick Taylor-Vaisey in an email.

About 700 people were affected by the breach of the 7,000 documents accessed between March 3 and March 5, according to the province. Many of the documents are files they’ve applied for under freedom-of-information requests.

All are being contacted through registered letters, a process Arab said is ongoing.

Opposition parties have called for Arab’s resignation over the lack of security on the site, but Premier Stephen McNeil has defended her performance, saying it’s been up to his government’s standards.

However, on Tuesday the premier appeared to be backing away from strong statements made last week when he said the youth had stolen the materials.

“We did what we believed was appropriate,” McNeil told reporters on Tuesday at the legislature, when asked about sending the matter for criminal investigation.

“We didn’t know who the person was … the information was downloaded, which was an inappropriate act in our view and we turned it over to the right people.”

Whether the matter proceeds to court will depend on approval by the province’s independent prosecution service, which must determine if the incident meets the test of providing a reasonable probability of a conviction, and whether it is in the public interest to proceed with a prosecution.

“Once we get the file, we’ll review the file like we review any other file to determine whether it meets the prosecutorial test,” said Chris Hansen, a spokeswoman for the service.

“We have not received any disclosure from the police on this and likely won’t until closer to the court date.”